Don't let the judges set the crooks free

PHIL GRAMM

TWO federal judges recently announced that they would refuse to take drug cases because they oppose mandatory minimum sentences.

One judge, Jack Weinstein of Brooklyn, N.Y., confessed to a "sense of depression about much of the cruelty I have been party to in connection with the war on drugs." (See column above.)

The other, Whitman Knapp of Manhattan, heartened that President Clinton "has not committed himself to the war on drugs in such a way as the Republican administration had," hoped his action would influence the president to abandon tough mandatory sentencing.

If the Clinton administration listens to these voices, and their echoes, and tries to roll back minimum mandatory sentences, it will certainly win applause from some criminal defense lawyers, judges and the media -- and no doubt many criminals -- but it will betray millions of Americans who took the president at his word when he promised to be tough on crime.

Contrary to conventional wisdom, most criminals are perfectly rational men and women. They don't commit crimes because they're in the grip of some irresistible impulse. They commit crimes because they think it pays. Unfortunately, in most cases they are right: In America today, crime does pay.

An economist at Texas A&M University has calculated the amount of time that a person committing a serious crime in 1990 -- the last year for which we have complete statistics -- could reasonably expect to spend in prison. By analyzing the probability of arrest, prosecution, conviction, imprisonment and the average actual sentence served by convicts for particular crimes, he reached some shocking conclusions:

On average, a person committing murder in the United States today can expect to spend only 1.8 years in prison. For rape, the expected punishment is 60 days. Expected time in prison is 23 days for robbery, 6.7 days for arson and 6.4 days for aggravated assault. And for stealing a car, a person can reasonably expect to spend just a day and a half in prison.

In trying to account for the 6 million violent crimes committed annually, analysts point to the breakdown of the family, the effects of television violence and the failure to teach moral values in our schools. While these factors have an impact, they overlook the main culprit: a criminal justice system in which the cost of committing crimes is so shamelessly cheap that it fails to deter potential criminals.

Mandatory minimum sentences deal with this problem directly. When a potential criminal knows that if he is convicted he is certain to be sentenced, and his sentence is certain to be stiff, his cost-benefit calculus changes dramatically and his willingness to engage in criminal activity takes a nose dive.

Again, the Texas A&M study is revealing. It found that since 1950, the expected punishment for a serious criminal has declined by two-thirds, while the annual number of crimes has risen seven-fold.

In 1950, each perpetrator of a serious crime risked, on average, 24 days in prison. By 1988, the amount of risked time was 8.5 days. Over 38 years, soft sentencing -- treating criminals as victims of dysfunctional families, of predatory capitalism, of society at large -- has brought a dramatic decline in the cost of committing a crime and a dramatic increase in crime.

Critics of mandatory minimum sentences point out, often with considerable indignation, that mandatory sentencing denies judges discretion in imposing sentences. And they are perfectly right. That's what we want.

Americans have lost faith in our criminal justice systems. Too many violent criminals have walked away with light or even no prison sentences.

Mandatory minimum sentencing is a massive no-confidence vote the American people in the discretionary powers of our judges. If judges and parole boards were legally liable for the actions of convicted felons who walk the streets due to their decisions, I would have more confidence in their judgment. But they are not.

"But what about fairness?" critics of mandatory minimum sentencing ask.

"Is it fair that someone who has never committed a crime in his life should go to prison for 10 years because one day he sold drugs to some kid? Shouldn't we distinguish between a major drug dealer and a minor drug offense?"

Once again, the critics are right: There is a distinction between major and minor drug offenses. A minor drug offense takes place when a pusher sells drugs to somebody else's child; a major drug offense takes place when he pushes drugs on yours. Only when our nation's elites are as outraged about what happens to someone else's child as they would be were it happening to their own will we deal with crime effectively.

Of course, there is the cost issue to be considered. At a time when we are desperately trying to reduce the federal deficit, can we really afford to sentence more criminals to jail for lengthier periods of time?

Of course we can. In 1990, the Department of Justice's bureau of statistics found that it costs from $15,000 to $30,000 to keep a felon in prison for a year. A Rand Corporation study calculated that the active street criminal imposes a financial cost of $430,000 on the public -- not to mention the very real costs of grief, fear and anger. Spending $30,000 a year to save $430,000 is a brilliant allocation of resources.

But in dealing with our nation's crime problem, cost is not the fundamental issue. Indifference is. I am appalled by the shoulder-shrugging approach some Americans take to the issue of crime in this country. Americans saw the pictures of starving children in Somalia and were outraged; we saw "ethnic cleansing" in Bosnia and were furious.

But our outrage and fury evaporate when American children are the victims of criminals.

Phil Gramm, Republican of Texas, is a member of the Senate subcommittee on Commerce, Justice, State and Judiciary.